The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.21 OF 2008 An appeal under section 374 Cr.P.C. from the judgment and order dated 09.01.2008 passed by the Sessions Judge, Phulbani in Sessions Trial No.69 of 2006. ---------------------------- Bishnu Patra ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Ms. Tapaswini Sinha Advocate For Respondent: - Mr. Jateswar Nayak Addl. Govt. Advocate ----------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K.SAHOO AND THE HONOURABLE MISS JUSTICE SAVITRI RATHO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 12.02.2025 --------------------------------------------------------------------------------------------------- By the Bench: The appellant Bishnu Patra faced trial in the Court of learned Sessions Judge, Phulbani in Sessions Trial No.69 of 2006 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 for commission of offence punishable under section 302/34 of the Indian Penal Code (hereinafter the „I.P.C.‟) on the accusation JCRLA No.21 of 2008 Page 1 of 24 that he along with his son Sahadev, in furtherance of their common intention, committed murder of Dhiren Mandal (hereinafter „the deceased‟) on 5th August, 2005 at about 8.00 p.m. at Chachingia Nala of village Muniguda under Tumudibandh police station in the district of Kandhamal. The learned trial Court vide judgment and order dated 09.01.2008 found the appellant guilty of the offence under section 302 of the I.P.C. and sentenced him to undergo rigorous imprisonment for life. Prosecution Case: 2. The prosecution case, as per the first information report (Ext.1) (hereinafter „F.I.R.‟) lodged by Banasingh Mandal (P.W.4) before the Officer in-charge of Tumudibandh police station on 06.08.2005, in short, is that on 05.08.2005 at about 8.00 p.m., the appellant along with his son Sahadev Patra and their other family members had committed murder of the deceased near Chachingia Nala by assaulting him with tangia. It is further stated in the F.I.R. that he had received information from Grama Rakhi, Tika Pradhan (P.W.3) about the incident, who told him that it was the wife of the appellant who gave him information regarding commission of murder of the deceased by the appellant. JCRLA No.21 of 2008 Page 2 of 24 Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 On the basis of such F.I.R., P.W.10 Harihar Swain, Officer in-charge of Tumudibandh police station registered the same as Tumudibandh P.S. Case No.49 dated 06.08.2005 under sections 302/34 of the I.P.C. against the appellant, his son Sahadev Patra and other family members. Upon registration of the F.I.R., P.W.10 took up investigation of the case. During the course of investigation, he examined the informant, deputed his staff to guard the dead body and he himself reached at the spot on 06.08.2005 at about 9.50 a.m., prepared the spot map (Ext.12), held inquest over the dead body of the deceased in presence of the witnesses, prepared the inquest report (Ext.13) and then sent the dead body for post mortem examination to the Sub-Divisional Hospital. P.W.10 also seized the sample and blood stained earth from the spot as per seizure list (Ext.4), examined other witnesses and apprehended the appellant at 5.00 p.m. on 06.08.2005. On 07.08.2005 at about 7.30 p.m., the I.O. (P.W.10) seized the wearing apparels of the deceased on being produced by the escort party members, who had accompanied the dead body for post mortem examination and at about 8.00 p.m., the appellant was arrested and while in police custody, he volunteered to give recovery of the weapon of offence i.e. axe Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 JCRLA No.21 of 2008 Page 3 of 24 and accordingly, his statement was recorded vide Ext.2/2 and he led the police party and the witnesses to Chachingia Nala and gave recovery of the axe and produced the same before the I.O. (P.W.10), which was seized as per seizure list Ext.3. The wearing apparels of the appellant were also seized at the police station as per seizure list vide Ext.7. P.W.10 sent the appellant to S.D. Hospital for collection of his nail clippings and accordingly, the same was collected and produced before the I.O., which were also seized. The I.O. (P.W.10) received the post mortem examination report and sent requisition to the S.D.M.O., Balliguda making a query relating to the possibility of the injury sustained by the deceased with the weapon seized and received the answer in affirmative. On 17.09.2005, the I.O. (P.W.10) prayed before the S.D.J.M., Balliguda to forward the exhibits to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination. On completion of investigation, he submitted charge sheet on 01.12.2005 under section 302/34 of the I.P.C. against the appellant and son of the appellant, showing the latter as an absconder. Framing of charge: Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 3. After submission of charge sheet, the case was committed to the Court of Session after complying due committal JCRLA No.21 of 2008 Page 4 of 24 formalities. The learned trial Court framed charge against the appellant as aforesaid and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Prosecution Witnesses & Exhibits: 4. During course of the trial, in order to prove its case, the prosecution examined as many as ten witnesses. P.W.1 Tengera Majhi is an independent witness who stated that while he was tending cattle on a piece of land situated in his village, he saw the appellant and the deceased were indulged in „pati tunda‟ and the appellant was holding an axe. He further stated that he heard that the deceased was lying dead near the spot where they were making „pati tunda‟ and he had not gone to the spot to see the dead body and P.W.2 was in his land at the time of the incident. P.W.2 Bhaktaram Patra is also an independent witness who stated that while he was working in field, he saw the appellant and the deceased were together and from their gesture, it appeared that they were talking. He further stated Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 that he had no knowledge whether the appellant was armed with any weapon and he heard on the next day that the deceased had JCRLA No.21 of 2008 Page 5 of 24 died near the spot where he had seen the appellant and the deceased together. P.W.3 Tika Pradhan is the Grama Rakhi who stated that on 05.08.2005 at about 8.00 p.m., the appellant‟s wife came to his house and told that her husband had cut the deceased. He further stated that on being asked, whether the deceased was dead or alive, she told that the deceased might have died in the meanwhile. He further stated that the wife the appellant disclosed that her husband had told her that he cut the deceased near Chachingia Nala and on the next day, he went to P.W.3 and told about the incident and thereafter, they went to the spot and saw that the dead body of the deceased was lying with a head injury. P.W.4 Banasing Mandal is the informant in the case. He supported the prosecution case and stated to have heard about the occurrence from P.W.3, visited the spot and then accompanied P.W.3 to lodged the F.I.R. He proved the F.I.R. as Ext.1. P.W.5 Sagaram Paraseth and P.W.6 Amarsingh Mandal have expressed their ignorance about the appellant Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 making any statement while he was in police custody. They further stated that nothing has been seized in their presence and JCRLA No.21 of 2008 Page 6 of 24 they have admitted to have put their signatures on some pieces of paper. They were declared hostile by the prosecution. P.W.7 Prakash Chandra Dehury was the constable attached to Tumudibandh police station. He stated that on 08.08.2005, the I.O. (P.W.10) seized the wearing apparels of the appellant i.e. one check full shirt (orange colour), check towel and one blue check lungi at the police station on being produced by the appellant as per seizure list vide Ext.7. P.W.8 Pankaja Pradhan was the constable attached to Tumudibandh police station. He stated that on 09.08.2005, the I.O. (P.W.10) seized one sealed vial on being produced by one constable G.R. Sahani and prepared the seizure list vide Ext.8. P.W.9 Dr. Smrutirekha Behera was the Assistant Surgeon attached to S.D. Hospital, Balliguda, who conducted the post mortem examination on the dead body of the deceased on 06.08.2005 on police requisition and proved his report vide Ext.9. She further opined that the cause of the death of the deceased was due to shock and haemorrhage due to injury to brain and death might have occurred within 12 to 36 hours and it is a case of suspected homicidal death. JCRLA No.21 of 2008 Page 7 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 P.W.10 Harihar Swain was the Officer in-charge of Tumudibandh police station, who is the Investigating Officer of the case. The prosecution exhibited sixteen documents. Ext.1 is F.I.R., Exts.2/2 is the statement of the appellant under section 27 of the Evidence Act, Exts.3 and 4 are seizure lists, Ext.5 is the 161 Cr.P.C. statement of P.W.5, Ext.6 is the 161 Cr.P.C. statement of P.W.6, Ext.7 is the seizure list in respect of check towel and blue lungi, Ext.8 is the seizure list in respect of one sealed vial being produced by one constable, Ext.9 is the carbon copy of original post mortem report, Ext.10 is the reply to the query by P.W.9, Ext.11 is the formal F.I.R., Ext.12 is the spot map, Ext.13 is the inquest report, Ext.14 is the forwarding report in respect of the exhibits forwarded to S.F.S.L., Rasulgarh, Ext.15 is the chemical examination report and Ext.16 is the serological report. The prosecution also proved six material objects. M.O.I is the shirt, M.O.II is the lungi, M.O.III is the towel, M.O.IV is the axe, M.O.V is the lungi and M.O.VI is the ganji. Defence Plea: Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 5. The defence plea of the appellant is one of complete denial and it is stated that on suspicion, he has been falsely JCRLA No.21 of 2008 Page 8 of 24 implicated in this case. The defence neither examined any witness nor exhibited any document. Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well as documentary evidence on record came to hold that there is no direct evidence in the case and the case entirely depends upon circumstantial evidence. Taking into account the last seen of the deceased in the company of the appellant as deposed to by P.Ws.1 and 2, the information given by the wife of the appellant to the Grama Rakhi that the appellant had killed the deceased near Chachingia Nala as deposed to by P.W.3, the dead body of the deceased was found lying near Chachingia Nala with head injury, leading to discovery of the weapon of offence (axe) at the instance of the appellant from inside a bush as deposed to by the I.O. (P.W.10), the medical opinion about the possibility of injury sustained by the deceased with such weapon so also possible time of death of deceased with the time of incident as deposed to by P.W.9, the learned trial Court has been pleased to hold that the witnesses who have deposed to in support of the prosecution case are all reliable and even though there is no direct evidence, the circumstantial evidence available are JCRLA No.21 of 2008 Page 9 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 sufficient to hold the appellant guilty under section 302 of the I.P.C. Contentions of the Parties: 7.
Legal Reasoning
Ms. Tapaswini Sinha, learned counsel appearing for the appellant contended that the learned trial Court has not kept in mind the well settled principle of appreciation of a case based on circumstantial evidence. She argued that the last seen evidence which has been adduced by P.Ws.1 and 2 are discrepant in nature and therefore, the learned trial Court should not have placed reliance on these testimonies. She further argued that though it is the prosecution case that the wife of the appellant came to P.W.3 and told him that the appellant committed murder of the deceased but in absence of the examination of the appellant‟s wife during trial, the evidence of P.W.3, who stated to have heard about the incident from her becomes hearsay evidence and it is inadmissible. Learned counsel further argued that the information given by the appellant‟s wife to P.W.3 which in turn was disclosed before the informant (P.W.4) is also highly suspicious inasmuch in the Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 F.I.R., it is not mentioned that only appellant is the author of the crime rather it is mentioned in the F.I.R. that the appellant, his son and his family members have committed murder of the JCRLA No.21 of 2008 Page 10 of 24 deceased by assaulting him with tangia. Learned counsel further argued that though at the instance of the appellant, the weapon of offence i.e. axe is stated to have been seized as deposed by the I.O. (P.W.10), but the independent witnesses to such seizure i.e. P.Ws.5 and 6 have not supported the prosecution case and moreover, the weapon of offence has not been shown to P.W.1 to be identified in Court. Learned counsel further argued that the evidence is lacking that the dead body of the deceased was found at the place where the appellant and the deceased were last seen and therefore, on the basis of the available materials on record, it cannot be said that the chain of circumstances is so complete as to unerringly point towards the guilt of the appellant and therefore, it is a fit case where the benefit of doubt should be extended in favour of the appellant. Mr. Jateswar Nayak, learned Additional Government Advocate, on the other hand, supported the impugned judgment and argued that the learned trial Court has rightly placed reliance on the evidence of P.Ws.1 and 2 who have seen the appellant and the deceased indulged in quarrel and the appellant was armed with an axe and the axe was seized at the instance of Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 the appellant as deposed by the I.O. (P.W.10) and it was sent for chemical examination. The chemical examination report indicates JCRLA No.21 of 2008 Page 11 of 24 that human blood was detected on it. Learned counsel further argued that the circumstantial evidence which are appearing on record against the appellant is trustworthy and it has been rightly relied upon by the learned trial Court and the doctor (P.W.9), who has conducted the post mortem examination has noticed the injury on the left side of parietal region and opined that the cause of death to be homicidal in nature and she has also answered to the query made by the I.O. (P.W.10) that the injury found on the head of the deceased was possible by axe (M.O.IV) which was produced before her after its seizure and therefore, the chain is complete and the appellant has been rightly found guilty under section 302 of the I.P.C. Whether the deceased met with a homicidal death?: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let us first examine the evidence available on record as to how far the prosecution has succeeded in establishing that the deceased met with a homicidal death. Apart from the inquest report (Ext.13), the evidence Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 of the doctor (P.W.9) is very much relevant on this score. P.W.9, who conducted the post mortem examination on 06.08.2005 has noticed the following external injuries: JCRLA No.21 of 2008 Page 12 of 24 “(i) Laceration of 6 x 3 x 8 cm size over left side of parietal region; (ii) Fracture of skull over left side. Parietal bone with a chip of bone of size 5 x 3 cm separated from the skull just underneath injury no.(i); (iii) Brain matter had emerged through the wound no.(ii).” P.W.9 further stated that the cause of death was due to hemorrhage and shock and injury to brain and the death might have occurred within 12 to 36 hours and it is a case of suspected homicidal death. The post mortem report was marked as Ext.9 with objection since the original was not produced. It further appears from the evidence of P.W.9 that on 15.09.2005, the I.O.(P.W.10) made a query regarding possibility of the injury found on the head of the deceased by the weapon i.e. axe (tangia), which was produced before her and on examination of the axe, P.W.9 opined in affirmative and the query report has been proved as Ext.10. Nothing has been brought out in the cross-examination to disbelieve the evidence of the doctor (P.W.9). Ms. Sinha, learned counsel for the appellant has also not challenged the evidence of P.W.9 and her opinion regarding homicidal death of the deceased. Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 JCRLA No.21 of 2008 Page 13 of 24 After going through the evidence on record, more particularly, the inquest report (Ext.13), the post mortem report findings, the evidence of the doctor (P.W.9), we are of the humble view that the learned trial Court has rightly come to the conclusion that the deceased met with homicidal death. Principles relating to appreciation of the case based on circumstantial evidence: 9. Admittedly, the case is based on circumstantial evidence. In the case of Sharad Birdhichand Sarda -Vrs.- State of Maharashtra reported in (1984) 4 Supreme Court Cases 116, the principles relating to appreciation of the case based on circumstantial evidence has been discussed and the five golden principles or panchsheel has been laid down which are as follows: “1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency; JCRLA No.21 of 2008 Page 14 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 4. They should exclude every possible hypothesis except the one to be proved; 5. There must be a chain of circumstances so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” Last seen theory: 10. Keeping in view the principles laid down in the case of Sharad Birdhichand Sarda (supra), let us analyze the available circumstances on record. In the case in hand, the first circumstance relied upon by the learned trial Court is the last seen of the deceased in the company of the appellant, which is deposed to by two witnesses i.e. P.W.1 and P.W.2. P.W.1 has stated that on the date of occurrence, he was tending cattle on a piece of land in his village and it was evening hours and he saw the appellant and the deceased were indulged in quarreling, however, the son of the appellant was not present there, but the appellant was holding an axe. He further stated that the appellant had got his land where the aforesaid Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 incident occurred and on the next day, he heard that the deceased was lying dead near the spot where they were JCRLA No.21 of 2008 Page 15 of 24 quarreling. However, he has stated that he had not gone to the spot to see the dead body. He further stated that P.W.2 was in his land at the time of incident. In his cross-examination, he has stated that he was about 400 feet away from the deceased and he could not say as to who was holding what weapon and why they were quarreling. P.W.2, on the other hand though stated that the appellant and the deceased were together but he has not stated that there was any quarrel between them rather he stated that from their gesture, it appeared that they were talking. He has also not stated that the appellant was armed with any weapon. He further stated that on the next day, he heard about the death of the deceased near the spot but he had not gone there to see the dead body. The dead body of the deceased was found in the land of one Baman Patra as per the spot visit report prepared by the I.O. (P.W.10) where the inquest was also held. However, the evidence of P.Ws.1 and 2 is completely silent that the appellant and the deceased were found together in the land of Baman Patra. Since there are discrepancies between the evidence of Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 P.Ws.1 and 2 inasmuch as the evidence of P.W.1 that both the appellant and the deceased were indulged in quarreling and that JCRLA No.21 of 2008 Page 16 of 24 the appellant was armed with an axe is not getting corroboration from the evidence of P.W.2 and they had not shown the spot of quarrel to the I.O. (P.W.10), therefore, it is very difficult to accept the evidence of P.W.1 and P.W.2 and to utilize the same as last seen of the deceased in the company of the appellant particularly when the dead body was discovered lying on the land of Baman Patra on the next day morning. The last seen theory is a legal principle that is based on the idea that if someone is the last person seen with the deceased before a crime being committed, he is likely to be responsible for the crime unless he provides a satisfactory explanation in view of section 106 of the Evidence Act (section 109 of Bharatiya Sakshya Adhiniyam, 2023). Doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the deceased who was last seen with him. If there is a failure on the part of the accused to furnish any explanation in this regard, or furnishing false explanation, it would give rise to a strong presumption against him and in favour of his guilt and would provide an additional link in the Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 chain of circumstances. Last seen theory comes into play where the time gap between the point of time when the accused and JCRLA No.21 of 2008 Page 17 of 24 the deceased were seen alive together and the discovery of the dead body is quite small and the possibility of any person other than the accused being the author of the crime becomes impossible. In the case of Satpal -Vrs.- State of Haryana reported in (2018) 6 Supreme Court Cases 610, it has been held that evidence of last seen theory is a weak kind of evidence by itself to convict upon the same singularly. In the case of Jaswant Gir -Vrs.- State of Punjab reported in (2005) 12 Supreme Court Cases 438, the Hon‟ble Supreme Court held that in absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of "last seen together", even if version of the prosecution witness in this regard is believed. In the case of Arjun Marik and Ors. -Vrs.- State of Bihar reported in 1994 Supp (2) Supreme Court Cases 372, it is observed that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore, no conviction on that basis alone can be founded. In the case of Dinesh Kumar -Vrs.- The State of Haryana A.I.R. 2023 S.C. 2795, it is held that the Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 circumstance of last seen together does not by itself lead to an irrevocable conclusion that it is the accused who had committed JCRLA No.21 of 2008 Page 18 of 24 the crime. The prosecution must come out with something more to establish this connectivity with the accused and the crime committed. In absence of such evidence, we are of the humble that the learned trial erred in utilizing the evidence of P.Ws.1 and 2 as the last seen of the appellant with the deceased. Evidence of P.W.3 and P.W.4 regarding statement of wife of the appellant : 11. The evidence of P.W.3 is that on 05.08.2005 at about 8.00 p.m. while he was in his house, the wife of the appellant came to his house and told him that her husband had cut the deceased and when he asked the wife of the appellant as to whether the deceased was dead or alive, she told that the deceased might have died in the meantime. P.W.3 in turn intimated the same to P.W.4. Thereafter P.W.4 along with P.W.3 went to lodge the F.I.R. Most peculiarly, in the F.I.R., there is nothing that the wife of the appellant had given information relating to the complicity of the appellant alone in the murder of the deceased rather it is mentioned that the appellant with his son Sahadev and his family members have killed the deceased with Tangia. Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 JCRLA No.21 of 2008 Page 19 of 24 In view of such recital in the F.I.R., which has lodged by P.W.4, the so-called information stated to have been given by the wife of the appellant becomes a doubtful feature. Moreover, the wife of the appellant has not been examined. The I.O. has stated that he had not interrogated the wife of the appellant and not cited her as a witness in the charge sheet. Therefore, the evidence of P.W.3 becomes hearsay and it is not admissible in view of section 60 of the Evidence Act. Leading to discovery of weapon of offence: 12. The weapon of offence was seized as per the disclosure statement made by the appellant, which is deposed to by the I.O. (P.W.10). He has stated that after arresting the appellant, while he was in custody, he stated that the weapon of offence i.e. axe had been kept concealed at a place and he could show the place if he would be taken to the place of concealment. Accordingly, the appellant led the I.O. (P.W.10) and the witnesses to Chachingia Nala and then to a bush where from he brought one axe. P.W.10 proved the statement of the appellant recorded under section 27 of the Evidence Act, which has been marked as Ext.2/2 and after recovery of the axe, the seizure list was prepared vide Ext.3. Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 JCRLA No.21 of 2008 Page 20 of 24 The I.O. has stated that the place of recovery of axe is an open field and accessible to all. The evidence of I.O. so also the relevant seizure list indicates that the appellant brought out the axe from the bush which was the place of concealment. In the case of State of Himachal Pradesh -Vrs.- Jeet Singh reported in (1999) 4 Supreme Court Cases 370, it is held that there is nothing in section 27 of the Evidence Act, which renders the statement of the accused inadmissible if recovery of the articles was made from any place, which is "open or accessible to others". Any object can be concealed in places which are open or accessible to others. The crucial question is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others. P.Ws.5 and 6 are the witnesses to such seizure but they have not supported the prosecution case. P.W.5 has stated that the police insisted him to sign on papers even without knowing why he would sign the same and accordingly, he signed. P.W.6 has also stated that police took his signatures on white and blank papers. Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 The I.O. has seized the axe on 08.08.2005 as per seizure list Ext.3, it was produced before the doctor (P.W.9) on JCRLA No.21 of 2008 Page 21 of 24 15.09.2005 and forwarded to the S.F.S.L., Rasulgarh for chemical examination on 17.09.2005. The I.O. stated that after seizure of axe, it was wrapped with a paper, but the same is not mentioned in the case diary or in the seizure list and it was kept in police station Malkhana till it was sent to S.F.S.L., Rasulgarh. No Malkhana register has been proved in the case. There is not only delay in sending the seized axe to S.F.S.L., but also clinching evidence is lacking regarding its safe custody. Even if the weapon of offence i.e. axe was examined by the doctor (P.W.9), who has given his opinion that the injury sustained by the deceased was possible by such weapon and human blood was also found in the axe as per the chemical examination report and even if it is held that such weapon, which could have been used for the commission of a crime, was discovered on the information given by the appellant, in absence of any other circumstance bring proved, these circumstances are not sufficient to hold the appellant as the murderer. Absence of Motive: 13. The prosecution has failed to prove any motive on the part of the appellant to commit the crime. In a case of direct evidence, motive would not be relevant, however, in a case of circumstantial evidence, motive plays an important link to Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 JCRLA No.21 of 2008 Page 22 of 24 complete the chain of circumstances. Absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. However, it is to be kept in mind that the motive is a thing which is primarily known to the accused himself and it is not possible for the prosecution to explain what actually promoted or excited the accused to commit the particular crime. Conclusion: 14. In view of the foregoing discussions, we are of the view that there is no clinching evidence against the appellant relating to his involvement in the crime in question. The circumstances which are appearing on record do not form a complete chain so as to come to a conclusion with certainty that the appellant is the author of the crime. The findings of the learned trial Court against the appellant are not justified. Though the case is one of very grave suspicion, but suspicion, however, strong cannot be allowed to take place of proof and therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. There is no sufficient legal evidence on which this Court can come to the conclusion that the appellant must have been the murderer. JCRLA No.21 of 2008 Page 23 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 Accordingly, the impugned judgment and order of conviction of the appellant under section 302 of the I.P.C. is not sustainable in the eye of law and the same is hereby set aside. The appellant is acquitted of the charge. The appellant, who is on bail by this Court vide order dated 18.09.2014 passed in Misc. Case No.3 of 2009, is hereby discharged from liability of the bail bonds and the surety bonds also stand cancelled. In the result, the JCRLA is allowed. Trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. Before parting with the judgment, we put on record our appreciation to Ms. Tapaswini Sinha, learned counsel for the appellant for rendering her valuable assistance in arriving at the above decision. We also appreciate Mr. Jateswar Nayak, learned Additional Government Advocate for ably and meticulously presenting the case on behalf of the State. S.K. Sahoo, J. …………………………… Savitri Ratho, J. ……………………………… Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 19:56:22 Orissa High Court, Cuttack The 12th February 2025 /Sipun JCRLA No.21 of 2008 Page 24 of 24